When Donald Trump was indicted in multiple criminal cases this summer, the conventional wisdom was that the former US president could spend vast amounts of time during the height of the 2024 presidential campaign stuck in courtrooms for back-to-back trials in New York, Florida and Washington.
But the reality is that with the federal 2020 election interference case on hold pending appeals, and repeated delays pushing the classified documents case behind schedule by several months, for instance, Trump may find himself in courtrooms far less than expected.
Trump has pleaded not guilty in his criminal cases: plotting to overturn the 2020 election in Washington, retaining national defense information and obstructing justice in Florida, conspiring to overturn the 2020 election in Georgia, and paying hush money to an adult film star in New York.
The US district judge Tanya Chutkan, overseeing the federal election case, set a trial date for March 2024. And with her clear determination to keep that date – including warning that she could even move it forward – the case was widely seen as the one to take place before next year’s election.
(There has been no trial date set in Georgia, though the Fulton county district attorney, Fani Willis, has proposed an August start, while there has been uncertainty over whether the Manhattan district attorney Alvin Bragg would put his case on hold should a federal trial happen.)
That was until the US supreme court became entangled in the case in two major ways this month, in a development that could have far-reaching implications for the timing and for the eventual outcome of the trial.
First, the court declined to decide the question of whether Trump could dismiss the charges on presidential immunity grounds before the US court of appeals for the DC circuit had issued its own ruling, remanding the case back to what could kickstart a lengthy appeals process.
The supreme court then became entangled in a second way when, two days later, it agreed to review whether an obstruction statute that prosecutors have used against Capitol attack rioters – and formed two of the four charges against Trump – could be used in relation to January 6.
Separately, the supreme court is almost certain to take up Trump’s expected appeal against the Colorado supreme court disqualifying him from being on the ballot for the state Republican primary under the 14th amendment, after finding that Trump “engaged” in insurrection.
Depending on how quickly the court schedules oral arguments, how quickly it issues rulings and what decisions it ultimately makes, the timing and scope of the special counsel’s case against Trump could be dramatically altered just months before voters choose whether to give him a second term.
“In the obstruction case, limiting the application of the obstruction statute – as the court has previously done – could knock out or impact that same charge in the indictment,” said former House counsel and current defense lawyer Stanley Brand, whose firm Brand Woodward has also represented January 6 defendants.
The wild card, Brand added, was with the Colorado decision. “A ruling by the court on whether January 6 constituted an insurrection under the 14th amendment could similarly cast a shadow on allegations in the indictment,” he said.
The worst-case outcome for the special counsel is that the federal election case remains frozen for weeks while the DC circuit considers the immunity question, Trump secures additional delay by seeking a rehearing before the full circuit, and then rules against the use of the obstruction statute.
There is the possibility that the supreme court gives the special counsel its best outcome, where it takes the immunity claim quickly should the DC circuit rule against Trump, preserving the March trial date, and decides the obstruction statute is not being used too broadly and applies to Trump.
But the uncertainty over two central parts of the special counsel’s election interference case now has a direct impact on whether Trump will spend more of his 2024 campaign in court, or on the trail.
Immunity
The US supreme court’s first entanglement was with Trump’s foremost defense to charges that he conspired to overturn the 2020 election results: that the indictment should be dismissed because he enjoys absolute immunity from prosecution for actions related to his “official duties” as president.
The special counsel Jack Smith on Saturday issued a court filing in which his team said presidents were not above the law. Smith’s argument suggested that, as president, Trump should be held to an even higher standard to protect the electoral process and reiterated that Trump engaged in “illegal acts to remain in power despite losing an election”.
On Friday, the court declined to grant certiorari, remanding the matter back to the DC circuit to decide in a move that could carry profound consequences for the viability of the March trial.
Even if the three-judge panel at the DC circuit – Florence Pan, Michelle Childs and Karen Henderson – rules against Trump quickly, Trump can then ask the full appeals court to rehear the case en banc, and then has 90 days to lodge his final appeal to the supreme court.
The now-cemented potential for delay was laid out by the special counsel’s supreme court litigator and former solicitor general Michael Dreeben.
“The court of appeals’ expedited briefing and argument schedule does not assure an appellate decision that will give this court adequate time to grant review, receive briefing, hold argument, and resolve this case in advance of the scheduled trial date,” Dreeben wrote in the government’s brief.
Trump has also made no secret that his overarching legal strategy, for all of his criminal cases, is to pursue procedural delays. If the cases do not go to trial before next year’s election and he wins a second term, then he could direct his handpicked attorney general to drop all of the charges.
And even if the case did go to trial before November, the people said, Trump’s preference would have been for the trial to take place as close as possible to the election because it would have given his 2024 campaign ammunition to miscast the criminal case against him as political in nature.
Obstruction
The supreme court is also set to consider next year whether federal prosecutors can charge January 6 riot defendants with a statute that makes it a crime to obstruct an official proceeding of Congress, which also formed the basis of two out of the four charges against Trump.
The case involves Joseph Fischer, who was charged with obstruction for assaulting police officers during the riot, which he sought to dismiss, arguing the obstruction statute passed under the Sarbanes-Oxley Act of 2002 in response to the Enron scandal, had to do with document or evidence tampering.
The US district judge Carl Nichols, who presided in the case, interpreted the statute as requiring prosecutors to show that the defendant took some action with respect to a document or record and did not apply to Fischer as he assaulted police officers at the Capitol.
But a split three-judge panel at the US court of appeals for the DC circuit reversed the decision, deciding that obstruction applied more broadly and encompassed impeding any official proceeding. Fischer, and two other January 6 defendants, appealed to the supreme court to resolve the issue.
If the supreme court decides that section 1512 of title 18 of the US criminal code was being used too broadly, that could cripple part of the case against Trump as the special counsel looks to draw a line at trial from the former president’s January 6 speech to the violence.
“The court’s grant of certiorari in the Fischer case over over the solicitor general’s objection may foretell trouble for the government’s use of the statute,” Brand said.
And if the court strikes down the use of the obstruction statute because it disliked the way prosecutors were using general conspiracy statutes for specific crimes, like it did with Jeffrey Skilling in the Enron scandal, it could undercut the remaining general conspiracy statutes used in the indictment against Trump, Brand added.
